Alvarez-Machain v. Sosa - US Depa

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					                            No. 99-56880
              IN THE UNITED STATES COURT OF APPEALS
                       FOR THE NINTH CIRCUIT
                   HUMBERTO ALVAREZ-MACHAIN,

                                 Plaintiff-Appellee/Cross-Appellant,

                                   v.

                          JOSE FRANCISCO SOSA,

                                 Defendant-Appellant/Cross-Appellee.

      ON APPEAL FROM THE UNITED STATES DISTRICT COURT
           FOR THE CENTRAL DISTRICT OF CALIFORNIA

       BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
     IN SUPPORT OF REVERSAL OF THE JUDGMENT AGAINST
         DEFENDANT-APPELLANT JOSE FRANCISCO SOSA

                                        DAVID W. OGDEN
                                         Acting Assistant Attorney General

                                        ALEJANDRO N. MAYORKAS
                                         United States Attorney

JAMISON S. BOREK                        BARBARA L. HERWIG
 Deputy Legal Adviser                    (202) 514-5425
ANDRE M. SURENA                         JOHN P. SCHNITKER
 Assistant Legal Adviser                 (202) 514-4116
Office of the Legal Adviser              Attorneys, Appellate Staff
Department of State                      Civil Division, Room 9142
2201 C Street, N.W.                      Department of Justice
Washington, D.C. 20520                   601 D Street, N.W.
                                         Washington, D.C. 20530-0001
2
                IN THE UNITED STATES COURT OF APPEALS
                         FOR THE NINTH CIRCUIT
                                     No. 99-56880
                       HUMBERTO ALVAREZ-MACHAIN,

                                         Plaintiff-Appellee/Cross-Appellant,

                                           v.

                             JOSE FRANCISCO SOSA,

                                         Defendant-Appellant/Cross-Appellee.

        ON APPEAL FROM THE UNITED STATES DISTRICT COURT
             FOR THE CENTRAL DISTRICT OF CALIFORNIA

         BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
       IN SUPPORT OF REVERSAL OF THE JUDGMENT AGAINST
           DEFENDANT-APPELLANT JOSE FRANCISCO SOSA
                INTEREST OF THE AMICUS CURIAE

      The United States has an interest in whether plaintiff Humberto Alvarez-

Machain (plaintiff) may seek redress under the Alien Tort statute, 28 U.S.C. § 1350,

for the transborder arrest carried out by defendant Jose Francisco Sosa (Sosa) and

others on behalf of the U.S. Drug Enforcement Administration (DEA). The United

States has participated as amicus curiae in prior cases involving the Alien Tort statute.

Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995), cert. denied, 518 U.S. 1005 (1996);

Trajano v. Marcos, 878 F.2d 1438 (9th Cir. 1989) (Table); Fed. R. App. P. 29(a).

                          STATEMENT OF THE ISSUES



                                           3
      1. Did the district court err in concluding that State-sponsored transborder arrest

constitutes the type of "specific, universal, and obligatory" violation of the "law of

nations" for which an individual remedy is available under the Alien Tort statute.

      2. Did the district court err in finding Sosa liable for prolonged arbitrary

detention of plaintiff under the Alien Tort statute.

                          STATEMENT OF THE CASE

      1. Plaintiff, a Mexican national, is a doctor in Guadalajara, Mexico. In

February, 1985, DEA Special Agent Enrique Camarena-Salazar (Camarena) was

abducted to a location in Guadalajara, where he was tortured and murdered. Plaintiff

was present while Camarena was held at that location. Based on his involvement,

plaintiff was indicted in 1990 by a federal grand jury in Los Angeles and a bench

warrant issued for his arrest. DEA Headquarters subsequently approved the use of

Mexican nationals to apprehend plaintiff in Mexico and transport him to the United

States. ER 112-13.1/ In March, 1990, Sosa, a former Mexican policeman, was asked

to participate in the operation by another Mexican national, Barragan. Sosa was told

that the DEA had a warrant for plaintiff's arrest, would pay the operation's expenses

and, if successful, would recommend Sosa for a Mexican government position.


1/
  All record references shall be to the Excerpts of Record (ER) filed concurrently with
the Opening Brief of Appellant Sosa and shall be referenced by page number.

                                           4
Barragan also emphasized that plaintiff not be harmed during the operation. Id. at 114-

15.

      On April 2, 1990, plaintiff was apprehended at his office and held overnight at a

motel, where he used a bed and was not denied food or water. The next day, plaintiff

was flown to El Paso, Texas, where he was arrested by federal agents. The group

delivering plaintiff to El Paso, including Sosa, immediately returned to Mexico. The

period from plaintiff's initial apprehension in Mexico to his transfer to federal custody

in El Paso amounted to slightly less than twenty-four hours. Id. at 116-20.

      In the subsequent criminal proceedings, plaintiff contended that the federal

courts lacked jurisdiction to try him because of the manner by which he was

apprehended. The Supreme Court rejected that claim, holding that any remedy for

plaintiff's apprehension was "a matter for the Executive Branch" to decide, Alvarez-

Machain v. United States, 504 U.S. 655, 669-70 (1992), and remanded the case for

trial. After trial, however, the district judge acquitted plaintiff, at which point he

returned to Mexico.

      2. Plaintiff then filed this civil damages action against, inter alia, Sosa. Ruling

on summary judgment, the district court concluded that plaintiff's transborder arrest

violated a "specific, universal and obligatory" norm of international law and granted

judgment against Sosa on this count under the Alien Tort statute. ER 90-97. While


                                           5
concluding that plaintiff was not mistreated during his brief transfer to federal custody,

the district court also held that Sosa violated the international prohibition against

"prolonged arbitrary detention" and granted plaintiff judgment on this count under the

statute as well. Id. at 100-02, 118, 126-28. The district court refused to consider the

brief nature of the detention, ruling that such matters were only relevant to damages.

ER 109-10. After trial, the district court awarded plaintiff $ 25,000 against Sosa on the

two claims. Id. at 142-50. Sosa appealed.

                           SUMMARY OF ARGUMENT

      1. Plaintiff does not have standing in this case to seek a remedy under the Alien

Tort statute because he is not complaining of the violation of an international legal

norm of which he, as an individual, is the beneficiary. Seeking to show that he is

entitled to relief under the Alien Tort statute, plaintiff relies primarily on the

international norm that every nation has exclusive jurisdiction over its own territory

and claims that his apprehension in Mexico by individuals acting on DEA's behalf

violates that principle of State territorial sovereignty. But any violation of that

principle that may have occurred in this case is a matter of which only Mexico, not

plaintiff, may properly complain under international law. The principle of State

territorial sovereignty is a principle governing the relations between sovereign States; it

does not govern the relations between States and individuals, and cannot provide an


                                            6
operative legal rule, the violation of which entitles an individual to a remedy.

Expansion of the Alien Tort statute to permit individuals to complain of violations of

international norms governing relations between sovereign States may also have

dangerous international consequences for the United States. In pursuit of its legitimate

foreign policy objectives, the United States occasionally may take actions that some

would say violate its international obligations; this could include actions alleged to

violate the territorial integrity of another State. The Alien Tort statute is not intended

as a vehicle for U.S. courts to judge the lawfulness of U.S. government actions abroad

in defense of national security. This Court should reject the district court's expansion

of this statute.

       2. The authorities cited by plaintiff to support his claim do not entitle an

individual to a remedy. These same authorities, in fact, were unpersuasive to the

Supreme Court, which noted only that they "may show" that plaintiff's apprehension

"may be" in violation of international law, but held that the determination of the

appropriate remedy for that violation is "a matter for the Executive Branch" to

determine in the realm of foreign relations. Alvarez-Machain, 504 U.S. at 666-70 &

n.15-16 (emphasis added).       Certainly, the Supreme Court's treatment of these

authorities does not demonstrate the sort of specific, universal and obligatory norm of

international law for which an individual remedy should be available under section


                                            7
1350.

        Under international law, there are a variety of remedies for transborder arrest

between sovereign States. These negotiated remedies include: (1) return of the arrested

party by the apprehending State to the State from which he or she was taken; (2) State-

to-State negotiations and/or agreement to a treaty to resolve the issue; and (3)

reparations, including apologies, by the apprehending State to the State whose territory

was violated. Plaintiff does not have standing to invoke these State-to-State remedies.

For similar reasons, plaintiff may not rely on treaty provisions concerning territorial

integrity in the U.N. Charter, the OAS Charter and the 1988 U.N. Convention Against

Illicit Traffic in Narcotic Drugs, because those documents are not self-executing and

may not be invoked by private parties. In short, the existing State-to-State remedial

régime under international law for State-sponsored transborder arrests — and the

primacy of the Executive Branch in determining our nation's response to such incidents

— cuts sharply against extension of section 1350 to the present circumstances.

        3. Alternatively, plaintiff asserts that State-sponsored transborder arrest violates

international human rights law. The United States is not a party to the American

Convention on Human Rights, and the International Covenant on Civil and Political

Rights on which plaintiff relies is not self-executing. The Universal Declaration of

Human Rights and the American Declaration of the Rights and Duties of Man are not


                                             8
agreements establishing legally binding rights and obligations.            None of these

Conventions and Declarations explicitly prohibit State-sponsored transborder arrest nor

do they collectively establish a "specific, universal and obligatory" norm against such

arrests. Thus, the documents cited by plaintiff neither individually nor collectively

establish a basis for a claim under section 1350 for a State-sponsored transborder

arrest.

          4. Lastly, the district court held Sosa liable for "prolonged arbitrary detention"

of plaintiff. This is wrong for two reasons. First, plaintiff's detention was supported

by a properly issued federal warrant; consequently, there is no basis for concluding it

was "arbitrary," either as a matter of fact or legal process. Second, even if arbitrary,

plaintiff's detention was not "prolonged," since he was held for less than twenty-four

hours prior to delivery to federal custody. The district court's contrary rulings should

be rejected by this Court.




                                               9
                                     ARGUMENT

I.    PLAINTIFF DOES NOT HAVE STANDING TO SEEK A REMEDY
      UNDER THE ALIEN TORT STATUTE FOR TRANSBORDER ARREST.

      1. The Alien Tort statute, 28 U.S.C. § 1350, provides as follows:

      The district courts shall have original jurisdiction of any civil action by an
      alien for a tort only, committed in violation of the law of nations or a
      treaty of the United States.

This statute requires, at a minimum, an alien and a tort in violation of international law.

In re Estate of Ferdinand E. Marcos Litigation, 978 F.2d 493, 499 (1992), cert. denied,

508 U.S. 972 (1993) ("Estate I"). This Court has held, however, that not every claimed

violation of the "law of nations" can be relied upon for purposes of this statute. To

meet this element, a plaintiff must show that the international norm "is specific,

universal, and obligatory." In re Estate of Ferdinand Marcos Human Rights Litigation,

25 F.3d 1467, 1475 (9th Cir. 1994), cert. denied, 513 U.S. 1126 (1995) ("Estate II")

citing, inter alia, Filartega v. Pena-Irala, 630 F.2d 876, 881 (2d Cir. 1980). To

determine whether a plaintiff has met his burden, the Court has stated that it

      must decide whether there is an applicable norm of international law,
      whether it is recognized by the United States, what its status is, and
      whether it was violated in the particular case.

Estate I, 978 F.2d at 502. While the Court will look for guidance on these matters to

"court decisions, the works of jurists and the usage of nations," Martinez v. City of Los

Angeles, 141 F.3d 1373, 1383-84 (9th Cir. 1998), the views of the Executive Branch,

                                            10
which is primarily responsible under the Constitution for U.S. relations with foreign

States, are entitled to deference on these matters as well. Haig v. Agee, 453 U.S. 280,

292 (1981); U.S. Const., Art. II, §§ 2, 3.

      2. Plaintiff does not have standing in this case to seek a remedy under the Alien

Tort statute because he is not complaining of the violation of an international legal

norm of which he, as an individual, is the beneficiary. Seeking to show that he is

entitled to relief under section 1350,2/ plaintiff primarily relies on the international

norm that every nation has exclusive jurisdiction over its own territory, see The

Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116, 136 (1812), and claims that

his apprehension by individuals acting on DEA's behalf violates this principle of State

territorial sovereignty. ER 93.3/

      The principle of territorial sovereignty governs relations between sovereign

States; it does not govern relations between States and individuals. Any violation of

2/
 While we take this Court's decision in Estate I, 978 F.2d at 495n.1, 500, as the law of
this Circuit and the starting point for our analysis, the United States respectfully
reserves the right to pursue other arguments concerning section 1350 where not
foreclosed by precedent.
3/
  While plaintiff also invokes the general principle that "[a] state's law enforcement
officers may exercise their functions in the territory of another state only with the
consent of the other state, given by duly authorized officials of that state," this
principle is merely a "corollary" of the principle of state territorial sovereignty and
adds nothing to plaintiff's argument. Restatement (Third) of Foreign Relations Law §
432(2) & cmt. b (1986) (Restatement).

                                             11
Mexican territorial integrity that may have occurred in connection with plaintiff's arrest

is a matter of which only Mexico, exercising its own rights under international law,

may properly complain. As a principle governing relations between sovereign States

— and not between States and individuals — the principle cannot provide an operative

legal rule, the violation of which entitles an individual to a remedy.4/ The United

States does not believe that any violation of Mexico's sovereignty that occurred in

connection with plaintiff's arrest is the kind of violation of international law for which

an individual can seek relief under section 1350.5/

      Rather, as shown below, the remedies available for such a violation are to

remedy the violation of the State's rights, not the individual's rights. Otherwise, a


4/
  In contrast to this claim, the international legal norms previously recognized by this
Court as actionable under section 1350 have all implicated the relations of States to
individuals, rather than the relations of States to States. Compare Martinez, 141 F.3d
at 1383-84 (arbitrary arrest, prolonged arbitrary detention); Estate II, 25 F.3d at 1475
(summary execution, causing "disappearance"); Siderman de Blake v. Republic of
Argentina, 965 F.2d 699, 714, 717 (9th Cir. 1992), cert. denied, 507 U.S. 1017 (1993)
(torture).
5/
  We recognize this Court has held that section 1350 provides plaintiff with a cause of
action. Estate II, 25 F.3d at 1475. As plaintiff noted in the Supreme Court, however,
the issues of standing and a cause of action are conceptually "distinct," Brief For
Respondent, 1992 WL 526163, at *41, Alvarez-Machain, supra, citing Davis v.
Passman, 442 U.S. 228, 239-40n.18 (1979). While plaintiff would have a cause of
action under section 1350 if he could show that his rights under international law had
been violated, he has no standing to complain of any violation of Mexico's territorial
sovereignty as a result of his arrest.

                                           12
State-to-State international norm is transformed into a remedial vehicle for individuals,

a purpose for which it seems particularly ill suited. For example, during NATO's

recent bombing campaign in Kosovo, one can imagine a hypothetical situation where a

precision-guided NATO bomb accidentally goes astray and falls on a house, injuring

the owners. The rule applied by the district court would recognize the standing of the

individual aliens to seek a remedy for this "tort" under the Alien Tort statute by, for

example, suing the Secretary General of NATO in district court for violation of

principle of territorial integrity, even though the "tort" (the personal injury) is not "in

violation of the law of nations" (territorial sovereignty) in any relevant sense and the

appropriate subject of any remedy for the violation of territorial integrity is the State,

not the individual.

      The expansion of the Alien Tort statute by the district court also may have

dangerous international consequences for the United States. In pursuit of its legitimate

foreign policy objectives, the United States occasionally may take actions that some

would say violate its international obligations; this could include actions alleged to

violate the territorial sovereignty of another State6/ In plaintiff's view, any alien is

entitled to complain of such conduct in federal court under section 1350, if a "tort"

6/
  In order to effectively carry out its legitimate policies, the United States may violate
international law. United States v. Howard-Arias, 679 F.2d 363, 371-72 (4th Cir.),
cert. denied, 459 U.S. 874 (1982).

                                            13
occurs thereby. Such a rule might render actionable efforts by the United States (and

those acting on its behalf) to pursue its legitimate foreign policy aims (such as U.S.

attacks on Usama Bin Laden's facilities in response to the African Embassy bombings

or U.S. enforcement actions against fugitive international terrorists or drug traffickers),

if such conduct violates another State's territorial integrity. The Alien Tort statute is

not intended as a vehicle for U.S. courts to judge the lawfulness of U.S. government

actions abroad in defense of national security and any remedies for such actions are

appropriately matters for resolution by the political branches, not the courts.7/ This

Court should reject the district court's extension of the Alien Tort statute to encompass

legal principles that properly govern relations between sovereign States, rather than the

relations between States and individuals.

      3.a. The district court in this case stated that plaintiff cited a "wealth of

international authority" to support the claim that his transborder arrest violates

international law for purposes of section 1350. ER 93. Plaintiff, in fact, relied on

these same authorities before the Supreme Court to claim that his apprehension "is a

violation of international law." See Brief For Respondent, 1992 WL 526163, at *16-

*22, *43-44, Alvarez-Machain, supra. In concluding that plaintiff could be tried by


7/
   Indeed, such matters touch on political questions, inappropriate for judicial
resolution. See Baker v. Carr, 369 U.S. 186, 210-13 (1962).

                                            14
U.S. courts consistently with the terms of the U.S.-Mexican extradition treaty,

notwithstanding the manner of his apprehension, the Supreme Court was unpersuaded,

noting only that these authorities "may show the practice of nations" and that plaintiff's

apprehension "may be in violation of general international law principles" but that

determination of the appropriate remedy for that violation "is a matter for the

Executive Branch." Alvarez-Machain, 504 U.S. at 666-69 & nn.15-16 (emphasis

added). Certainly, the Supreme Court's treatment of these authorities does not

demonstrate the sort of "specific, universal, and obligatory" norm of international law

for which an individual remedy should be available under section 1350. Estate II, 25

F.3d at 1475. Further, the Court properly deferred to the role of the Executive Branch

in resolving these foreign relations matters, both in plaintiff's case and more generally.7
/



      b. There are a variety of negotiated State-to-State remedies for a State-

sponsored transborder arrest under international law. That State-to-State remedial

régime is by agreement of the States involved and does not entitle a plaintiff to an

8/
  Plaintiff also relies on a legal opinion of the Inter-American Juridical Committee of
the Organization of American States (OAS) that the Alvarez-Machain decision is
contrary to international law. Opinion of the Inter-American Juridical Committee
reprinted in 13 Hum. Rts. L.J. 395-99 (1992). The Committee acknowledged,
however, that its views were "a matter of consultative opinions that have no binding
effect." Id. at 396. Indeed, Judge Rubin entirely abstained from ruling on the ground
"the Committee has no jurisdiction to act in this way." Id. at 399.

                                            15
individual remedy. One possible remedy for a transborder arrest is the return of the

arrested party by the apprehending State to the State from which he or she was taken.

See Restatement, supra, § 432, cmt. c, at 329-30; Preuss, Settlement of Jacob

Kidnapping Case, 30 Am. J. Int'l L. 123 (1936) (Former German citizen taken from

Switzerland by Germany; after State-to-State arbitration, citizen returned to

Switzerland); In re Vincenti (1920) reprinted in 1 H. Hackworth, Digest of

International Law 624 (1940) (U.S. citizen arrested by federal agents in British

territorial waters; at U.S. direction, criminal case dismissed and defendant released);

Abraham Abromovsky, Extraterritorial Abductions: American's 'Catch And Snatch'

Policy Run Amok, 31 Va. J. Int'l L. 151, 208-10 (1991) (remedy "must be the

repatriation of the defendant to his home country"); F.A. Mann, "Reflections on the

Prosecution of Persons Abducted in Breach of International Law," International Law in

a Time of Perplexity 411 (1989) (same).8/ This is a State-to-State remedy that the

Executive Branch declined to apply in plaintiff's case. Alvarez-Machain, 504 U.S. at

666-70. It is not a remedy that individuals may claim, however. Id. Indeed, in the one


9/
  Some of the authorities on which plaintiff relies permit the individual to raise the
manner of apprehension as a basis for dismissal of the charge. Bennett v. Horseferry
Road Magistrate's Court, [1993] 3 All E.R. 138 (House of Lords); S. v. Ebrahim, 1991
S. Afr. L. Rep. 1 (Apr.-June 1991); In re Jolis [1933-34] Ann. Dig. 191 (Tribunal
Correctional d'Avesnes). Such a result, however, was rejected by the Supreme Court
as to this plaintiff. Alvarez-Machain, 507 U.S. at 666-670.

                                          16
case cited by plaintiff which holds, consistently with Alvarez-Machain, that the manner

of rendition does not affect the prosecution, the French court rejected the individual's

claim to a remedy:

      Examining the complaint based on the violation in this case of the rules
      of international law and of the principle of the sovereignty of States on
      their territory, the Court observes that the State which is entitled to
      complain of damage suffered by one of its nationals or protected persons
      in violation of its territorial sovereignty exercises its own right when it
      claims reparations. Individuals have no capacity to plead in judicial
      proceedings a contravention of international law. The putting in issue of
      international responsibilities concerns only relations between State and
      State, without individuals being entitled to intervene.

Re Argoud, 45 I.L.R. 90, 96 (Cour de Cassation 1964) (emphasis added).9/

      A second possible remedy is State-to-State negotiation and/or agreement to a

treaty to resolve the dispute. In fact, the governments of the United States and Mexico

pursued such a remedy here. Following plaintiff's apprehension, the United States

gave written assurances to the Mexican government that it would "neither conduct,

encourage or condone" similar transborder arrests from Mexico while the parties

negotiated to resolve the issue. Statement of Alan J. Kreczko, Deputy Legal Adviser,

10/
   The last case cited by plaintiff is a very confused decision concerning whether
German authorities properly exercised jurisdiction over six French Foreign Legion
deserters in Morocco, which, at the time, was under French military occupation. The
case does not support an individual remedy. In fact, the court held that "the conflict
between the two [State] jurisdictions [over the deserters] could not be determined by
any absolute or general rule." Casablanca Case (France v. Germany), Hague Ct. Rep.
110 (Scott ed. 1916).

                                          17
Department of State, before the Subcommittee on Civil and Constitutional Rights of

the House Judiciary Committee, 3 State Department Dispatch 616 (August 3, 1992).10/

Subsequently, the United States and Mexico signed a Treaty on the subject. Treaty to

Prohibit Transborder Abductions reprinted in 5 M. Abell & B. Ristau, International

Judicial Assistance: Criminal, A-676.3 to 676.6 (1995).              That treaty prohibits

transborder arrests by either State (Art. 2), provides procedures for resolving such

incidents between the two States (Art. 4), and sets out various possible State-to-State

remedies, including repatriation of the apprehended party in certain instances (Art. 5)

and sanctions against the individuals responsible for the seizure (including prosecution,

extradition11/ and civil or administrative sanctions) (Art. 6). Id. The Treaty, however,

also makes clear that its provisions "may be invoked only by the Parties, are not

intended to benefit third parties, and shall not give rise to a right on the part of any

private person." Id. at A-676.5 (Art. 7). Although the Treaty is not in force,12/ the

negotiations of the United States and Mexico leading to this Treaty — and the Treaty's

11/
   Mr. Kreczko, however, also stated that the United States was "not prepared to
categorically rule out unilateral action * * * in certain extreme cases" as a matter of
"self-defense." Id.
12/
  As the Treaty indicates, extradition of the individuals responsible for the seizure is
another possible State-to-State remedy and has been agreed to by the United States
under certain circumstances. See Kear v. Hilton, 699 F.2d 181 (4th Cir. 1983).
13/
      The Treaty is subject to ratification (Art. 9) and has not been ratified.

                                              18
disclaimer of private rights — sharply undercuts plaintiff's assertion that he is entitled

to a remedy under international law.

      A third possible remedy for transborder arrest is for the State whose territory has

been violated to "receive reparation from the offending [S]tate." Restatement, supra, §

432, cmt. c; Re Argoud, 45 I.L.R. at 96. Reparations were used in the Eichmann case,

on which plaintiff relies. After Eichmann's apprehension in Argentina by Israel, the

United Nations declared that his seizure "affect[ed] the sovereignty of a Member State

[Argentina]," that, "if repeated," it might "endanger international peace and security"

and requested "the Government of Israel to make appropriate reparations [to

Argentina] in accordance with the Charter of the United Nations and the rules of

international law." Security Council Resolution concerning Adolf Eichmann, U.N.

Doc. S/4349 (23 June 1960).13/ As explained by U.N. Ambassador Henry Cabot

Lodge, "adequate reparations" simply consisted of the "expression of views by the

Security Council in the pending resolution [that was eventually adopted] together with

the statement of the Foreign Minister of Israel making apology [to Argentina] on


14/
    Unless adopted as a decision under Chapter VII of the U.N. Charter, U.N.
Resolutions, including the one adopted in the Eichmann case, are non-binding. G.
Schwarzenberger & E.D. Brown, A Manual of International Law 237 (1976). In
Eichmann's prosecution, the Israeli courts held that the manner of his rendition "must *
* * find its solution at th[e] international level" rather than before Israel's domestic
tribunals. Attorney General v. Eichmann, 36 I.L.R. 277, 305 (S.Ct. Israel 1962).

                                           19
behalf of the Government of Israel." 5 M. Whiteman, Digest of International Law 212-

13 (1965). Again, these are State-to-State remedies, not individual remedies.14/

      c. Plaintiff also bases his claims on treaty provisions concerning territorial

integrity in several international agreements, including both the Charters of the United

Nations15/ and the Organization of American States.16/ Courts, however, have refused

to allow individuals to complain of violations of such multilateral compacts between


15/
   The only instance cited by plaintiff in which reparations were paid to an individual
involved the situation where the seized party was executed by the apprehending State
before he could be returned. Amekrane v. United Kingdom discussed in 1 Bassiouni,
International Extradition: United States Law & Practice ch. V, § 5.4, at 236-37 (2d
rev. ed. 1987). As Bassiouni explains, the abducted person's "widow received
compensation as part of a settlement solution" between the affected States which, since
the abducted person was dead, "there was no alternative remedy of requesting the
country which kidnapped him to return him." Id. That is hardly the situation here.
16/
      U.N. Charter, 59 Stat. 1037, art. 2(4) (June 26, 1945):

      All Members shall refrain in their international relations from the threat
      or use of force against the territorial integrity or political independence of
      any state, or in any other manner inconsistent with the Purposes of the
      United Nations.
17/
      Charter of the OAS, 2 U.S.T. 2420, TIAS No. 2361, art. 17, as amended by the
Protocol of Buenos Aires, 21 U.S.T. 607, 659, 662, TIAS No. 6847 (April 30, 1948),
Art. V (amending Art. 17 to Art 20):

      The territorial integrity of a State is inviolable; it may not be the object,
      even temporarily, of miliary occupation or of other measures of force
      taken by another State, directly or indirectly, on any ground whatsoever.
      No territorial acquisitions or special advantages obtained either by force
      or other means of coercion shall be recognized.

                                           20
States. Such agreements are not "self-executing" and require implementing legislation

before they may be relied upon by individuals. Committee of Citizens v. Reagan, 859

F.2d 929, 937-38 (D.C. Cir. 1988). That is the case with both the U.N. Charter, id.,

and the OAS Charter, United States v. Noriega, 746 F. Supp. 1506, 1533 (S.D. Fla.

1990), aff'd, 117 F.3d 1206 (11th Cir. 1997), cert. denied, 523 U.S. 1060 (1998).

      Plaintiff similarly relies on two provisions (Arts. 2(2)17/ and 2(3)18/) of the 1988

United Nations Convention Against Illicit Traffic in Narcotic Drugs (28 I.L.M. 493).

This Convention, similar to the U.N. and OAS Charters, is a multilateral treaty that is

not self-executing. Indeed, it contains remedial provisions (Art. 32(1) and (2)) that

require parties to resolve disputes under the Convention by "consult[ing] together with

a view to the settlement of the dispute," and, if consultations fail, to refer the dispute

"to the International Court of Justice for decision." 28 I.L.M. at 525. These State-to-

State remedies wholly undercut plaintiff's claim that the Convention's provisions may

be invoked by a private party.

      In sum, whatever violation of the principle of State territorial sovereignty may

18/
  "The Parties shall carry out their obligations under this Convention in a manner
consistent with the principles of sovereign equality and territorial integrity of States
and that of non-intervention in the domestic affairs of other States."
19/
    "A Party shall not undertake in the territory of another Party the exercise of
jurisdiction and performance of functions which are exclusively reserved for the
authorities of that other Party by its domestic law."

                                           21
have occurred in connection with plaintiff's arrest by individuals acting on DEA's

behalf, such a violation is not one of which plaintiff has standing to complain under

section 1350. A violation of State sovereignty is for the State to pursue, not the

individual, and the remedies available for such a violation are to remedy the violation

of the State's rights, not the individual's. The principle of State sovereignty relied on

by plaintiff is not a "specific, universal, and obligatory" international norm in relation

to individuals such that plaintiff has standing to seek a remedy under section 1350.

Estate II, 25 F.3d at 1475.

      4. Perhaps recognizing the weakness of his reliance on Mexico's rights, plaintiff

alternatively asserts that State-sponsored transborder arrest is itself a violation of

international human rights law, for which section 1350 provides a remedy. See ER 96.

In support of his argument, plaintiff relies on provisions in the following documents:

(1) the American Convention on Human Rights, 9 I.L.M. 673 (July 4, 1977), Art. 7 &

2219/; (2) the International Covenant on Civil and Political Rights, Exec. Doc. E, 95-2

(1978), 999 U.N.T.S. 171, (December 19, 1966), Art. 9 & 1020/; (3) the Universal


20/
   Art. 7. Right to personal liberty: "1. Every person has the right to personal liberty
and security"; "3. No one shall be subject to arbitrary arrest and imprisonment"; Art.
22 Freedom of movement and residence: "5. No one can be expelled from the
territory of the State of which he is a nation, or deprived of the right to enter it."
21/
  Art. 9: "1. Everyone has the right to liberty and security of person. No one shall be
subjected to arbitrary arrest and detention." "5. Anyone who has been a victim of
                                           22
Declaration of Human Rights, G.A. Res. 218A, U.N. GAOR, 3d Sess. pt. 1, 67th Plea.

Mtg., U.N. Doc. A/810 (1948), Arts. 3, 9, 1021/; and (4) the American Declaration of

the Rights and Duties of Man, signed May 2, 1948, O.A.S. Off. Rec.

OEA/Ser.L/V/II.23 doc. 21, rev. 6 (English 1979), Art. 1 & 8.22/ None of these

documents, either individually or collectively, evince a "specific, universal and

obligatory" rule of customary international law proscribing State-sponsored

transborder arrest to support a section 1350 claim. Estate II, 25 F.3d at 1475.

      First, only the International Covenant on Civil and Political Rights is an

operative treaty for the U.S. and it is not self-executing. While the United States has

signed the American Convention on Human Rights, it is not a party to that Convention

since it not yet been ratified. Further, while the United States has ratified the



unlawful arrest or detention shall have an enforceable right to compensation"; Art. 10:
"1. All persons deprived of their liberty shall be treated with humanity and respect for
the inherent dignity of the human person."
22/
   Art. 3: "Everyone has the right to life, liberty and security of person"; Art. 9: "No
one shall be subjected to arbitrary arrest, detention, or exile"; Art. 10: "Everyone is
entitled in full equality to a fair and public hearing by an independent and impartial
tribunal, in the determination of his rights and obligations and of any criminal charges
against him."
23/
   Art. 1: "Every human being has the right to life, liberty and the security of his
person"; Art. 8: "Every person has the right to fix his residence within the territory of
the state in which he is a national, to move about freely within such territory, and not to
leave it except by his own will."

                                            23
International Covenant on Civil and Political Rights (the Senate gave its advice and

consent on April 2, 1992, and that Covenant entered into force for the United States23/

on September 8, 1992, over two years after the events underlying this suit), the Senate

and the Executive Branch agreed at the time of ratification that the Covenant articles

on which plaintiff relies (Arts. 9 and 10) are not self-executing and may not be relied

upon by individuals. S. Exec. Rep. No. 23, 102d Cong., 2d Sess. 9, 19, 23 (1992); 138

Cong. Rec. 8068, 8070-71 (April 2, 1992). Where the political branches have

explicitly agreed to preclude an individual remedy under these provisions, it would be

particularly anomalous for this Court to recognize one here. Cf. Humanitarian Law

Project v. Reno, 2000 WL 235310, at *4 (9th Cir. March 3, 2000) (political branches

should have "wide latitude" in judgments "bound up with foreign policy

considerations").

      The two Declarations are not treaties, nor are they binding international

agreements. Indeed, at the time of passage of the Universal Declaration of Human

Rights, Eleanor Roosevelt, Chairman of the U.N. Human Rights Commission, who

24/
   Even if plaintiff could invoke the provisions of the Covenant, there is doubt whether
it would apply. Under the Covenant, the United States only agreed to ensure the rights
recognized by the Covenant "within its territory and subject to its jurisdiction."
Covenant, supra, Part II, Art. 2.1. In this case, plaintiff complains of Sosa's conduct in
Mexico resulting in plaintiff's transfer to U.S. custody; prior to his arrest in El Paso,
plaintiff was not "within the territory" or "subject to the jurisdiction" of the United
States and the Covenant is not applicable.

                                           24
was instrumental to its passage, stated that the Declaration "is a declaration of basic

principles" but "is not and does not purport to be a statement of law or legal

obligation." 5 M. Whiteman, supra, at 243.

      Second, even taken together, these documents do not evince a "specific,

universal and obligatory" rule of customary international law prohibiting transborder

arrests. None of these documents explicitly prohibits State-sponsored transborder

arrests. As the Restatement acknowledges, "[n]one of the international human rights

conventions to date * * * provide that forcible abduction or irregular extradition is a

violation of international human rights law." Restatement, supra, § 432, Reporters

Note 1, at 330.

      Thus, the documents cited by plaintiffs neither individually nor collectively

establish a basis for a claim under section 1350 for State-sponsored transborder arrest.

      5. As our submission indicates, the United States does not believe that

international law currently recognizes the standing of an individual — as contrasted

with the standing of a sovereign State — to complain of a State-sponsored transborder

arrest. One can also draw an analogy here to the considerations underlying the

Supreme Court's decision in Anderson v. Creighton, 483 U.S. 635 (1987).

      Anderson, of course, concerned the contours of an individual's remedy under

Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), for a violation of the


                                          25
Constitution. One might roughly analogize an alien's remedy under section 1350 to an

individual's Bivens remedy under the Constitution. Bivens, however, is not a strict

liability régime. Rather, a government official is liable only to the extent that he

violated "clearly established * * * constitutional rights of which a reasonable person

would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). This standard

attempts to balance conflicting concerns, e.g., the need to provide a remedy for clearly

illegal conduct with the fear that the unqualified imposition of liability would dampen

the ardor of public officials seeking to properly carry out important duties. See

Harlow, 457 U.S. at 814.          An individual official, consequently, is not liable

under Bivens for violation of only generalized constitutional mandates. Rather, the

specific "right the official is alleged to have violated must be 'clearly established' in a

more particularized, and hence, more relevant sense: The contours of the right must be

sufficiently clear that a reasonable official would understand that what he is doing

violates that right." Anderson, 483 U.S. at 640. By analogy here, the broad principles

of State territorial sovereignty have never before been defined in the "more

particularized" sense as a "specific, universal, and obligatory" international norm

benefitting individuals such that the persons acting on DEA's behalf, including Sosa,

would understand that what they were doing was tortious as to plaintiff. Indeed, the

district court acknowledged that "[b]ecause of the unsettled state of [international] law,


                                            26
Defendant Sosa did not have a clear warning of the impropriety of his conduct." ER

147.24/

          Another aspect of Bivens is also relevant here. Courts do not allow a private

remedy under Bivens where "special factors counsel[] hesitation." Schweiker v.

Chilicky, 487 U.S. 412, 420-23 (1988). As explained above, the remedies for State-

sponsored transborder arrest — and any related violation of State territorial sovereignty

— are negotiated State-to-State remedies. In Alvarez-Machain, the Supreme Court

indicated that such remedy questions, which involve foreign relations, are primarily for

the Executive Branch, with which courts should not interfere. Alvarez-Machain, 504

U.S. at 669 & n.16. The Executive Branch's primacy in foreign relations provides a

"special factor" counseling against extension of the Alien Tort statute to these

circumstances. Haig, 453 U.S. at 292; see also United States v. Verdugo-Urquidez,

494 U.S. 259, 274 (1990); J.M. Rogers, International Law And United States Law 213-

15 (1999). The existing State-to-State remedial régime under international law for

State-sponsored transborder arrests — and the primacy of the Executive Branch in

determining our nation's response to such incidents — cuts sharply against extension of

section 1350 to the present circumstances.

25/
  In this connection, the United States notes that, by virtue of the warrant, the district
court held that neither Sosa nor any other federal law enforcement agents were liable
under California tort law for either false arrest or false imprisonment. ER 81-89.

                                            27
II.   THE DISTRICT COURT ERRED IN HOLDING SOSA LIABLE FOR
      PLAINTIFF'S DETENTION UNDER THE ALIEN TORT STATUTE.
      This Court has held that "prolonged arbitrary detention" is an actionable

violation of international human rights law under section 1350, Martinez, 141 F.3d at

1383-84; accord Hilao v. Estate of Marcos, 103 F.3d 789, 790-91, 794-95 & n.9 (9th

Cir. 1996), and has upheld liability where aliens have been detained for prolonged

periods by their own government without adequate legal process. Id. The district

court erred in holding Sosa liable here for two reasons.

      First, there is no basis for concluding that plaintiff's detention was arbitrary. As

noted above, plaintiff's detention by Sosa was supported by a properly issued federal

warrant following indictment by a grand jury. By reason of the warrant, plaintiff's

detention was simply not "arbitrary" as a matter of law. Martinez, 141 F.3d at 1384.

The district court distinguished Martinez on the ground that, in Martinez, there was a

valid Mexican warrant and here there was not. ER 108. This confuses Mexican

domestic law with international law. Whether the lack of a Mexican warrant raises

concerns, either as a matter of Mexican law or as a breach of territorial integrity

(discussed above), it does not render plaintiff's detention by agents acting on behalf of

DEA "arbitrary," either as a matter of fact or legal process.

      Second, even if arbitrary, plaintiff's detention simply was not prolonged. It is

uncontested that plaintiff was detained for less than twenty-four hours. ER 101, 109-


                                           28
10, 116-20. The district court held that plaintiff's claim "does not depend on the length

of his detention"; rather, that period only goes to the issue of damages. Id. This ruling

effectively eliminates the term "prolonged" from the actionable violation, rendering

individuals liable under section 1350 for any arbitrary detention. It is also contrary to

the Restatement, which recognizes that "arbitrary detention violates customary law"

only "if it is prolonged * * *." Restatement, supra, § 702, cmt. h (emphasis added).

       Plaintiff's brief detention by Sosa was not a "prolonged, arbitrary detention"

         and the district court's judgment on this ground should be reversed.




                                           29
                                CONCLUSION

      For the reasons stated above, the judgment against defendant Sosa should be

reversed.

                                            Respectfully Submitted,


                                            DAVID W. OGDEN
                                             Acting Assistant Attorney General

                                            ALEJANDRO N. MAYORKAS
                                             United States Attorney

 JAMISON S. BOREK                           BARBARA L. HERWIG
  Deputy Legal Adviser                       (202) 514-5425
 ANDRE M. SURENA                            JOHN P. SCHNITKER
  Assistant Legal Adviser                    (202) 514-4116
 Office of the Legal Adviser                 Attorneys, Appellate Staff
 Department of State                         Civil Division, Room 9142
 2201 C Street, N.W.                         Department of Justice
 Washington, D.C. 20520                      601 D Street, N.W.
                                             Washington, D.C. 20530-0001

MARCH 2000




                                       30
                       CERTIFICATE OF COMPLIANCE

      Pursuant to Fed. R. App. P. 29(d) and Ninth Circuit R. 32-1, I hereby certify that

the text of the attached amicus brief is proportionately spaced, using 14 point Times

New Roman font or larger for both text and footnotes. Using the word count provided

on our word processing system, I also certify that the above brief contains 6849 words,

for an average of 228 words per page.


__________                       ___________________________
Date                                  JOHN P. SCHNITKER




                                          31
                         CERTIFICATE OF SERVICE

     I hereby certify that on this 20th day of March, 2000, I caused to be served two

copies of the foregoing BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

IN SUPPORT OF REVERSAL OF THE JUDGMENT AGAINST DEFENDANT-

APPELLANT JOSE FRANCISCO SOSA by first class mail, postage prepaid upon:

                         Paul L. Hoffman, Esq.
                         Schonbrun, DeSimone, Seplow,
                           Harris & Hoffman, LLP
                         723 Ocean Front Walk
                         Venice, CA 90291
                         Counsel for Plaintiff-Appellee/Cross-Appellant
                          Humberto Alvarez-Machain

                         Charles S. Leeper, Esq.
                         Glenn S. Greene, Esq.
                         Spriggs & Hollingsworth
                         1350 I Street, N.W.
                         Ninth Floor
                         Washington, D.C. 20005
                         Counsel for Defendant-Appellant/Cross-Appellee
                          Francisco Sosa

                         Lee W. Cotugno, Esq.
                         Kalisch, Cotugno & Rust
                         9606 Santa Monica Blvd.
                         Beverly Hills, CA 90210
                         Counsel for Defendant-Appellant/Cross-Appellee
                          Francisco Sosa




                                        32
                          Gary S. Lincenberg, Esq.
                          Thomas V. Reichert, Esq.
                          Bird, Marella, Boxer & Wolpert
                          1875 Century Park East, 23rd Floor
                          Los Angeles, CA 90067-2561
                          Counsel For Defendant-Appellee
                           Antonio Garate-Bustamante

                          Mary Hampton Mason, Esq.
                          Attorney, Civil Division
                          U.S. Department of Justice
                          Ben Franklin Station, P.O. Box 7146
                          Washington, D.C. 20044-7146
                          Counsel For Defendants-Appellees Jack Lawn,
                           Peter Gruden, William Waters and Hector Berrellez.

and also caused to be filed an original and fifteen (15) copies of the foregoing Brief

by first class mail, postage prepaid upon:

                          Ms. Cathy Catterson
                          Clerk, United States Court of Appeals
                           for the Ninth Circuit
                          P. O. Box 193939
                          San Francisco, CA 94119-3939




                                        _____________________
                                        JOHN P. SCHNITKER




                                             33

				
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